Full bibliography | SCC-Authors-Cited

Katz, A. (2015). Spectre: Canadian Copyright and the Mandatory Tariff— Part I. Intellectual Property Journal, 28(1), 39. http://hdl.handle.net/1807/100285

Canadian copyright collectives and the Copyright Board have in recent years advanced the theory that when the Board certifies collectives’ tariffs (or fixes the royalties in individual cases), those tariffs become mandatory on users. Users have no choice whether to deal with the collective; they must pay the specified royalties as long as they make a single unauthorized use of a work from the collective’s repertoire. Many users, for some strange reason, have also subscribed to this view, despite its extraordinary consequences. This article, first in a series of two, shows that this spectre of a “mandatory tariff” lacks any basis in law. Established case law debunks it, standard principles of statutory interpretation contradict it and the legislative history discredits it. An approved tariff creates a compulsory licence that interested users can avail themselves of, if they wish to obtain a licence, but it does not force users to become licensees. Copyright collectives can recover unpaid royalties only from users who offered to pay them and later default on their payment.

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Katz, A. (2015). Spectre: Canadian Copyright and the Mandatory Tariff — Part II. Intellectual Property Journal, 27, 151. http://hdl.handle.net/1807/104733

Canadian copyright collectives and the Copyright Board have in recent years advanced the theory that when the Board certifies collectives' tariffs (or fixes the royalties in individual cases), those tariffs become mandatory on users. Users have no choice whether to deal with the collective; they must pay the specified royalties as long as they make a single unauthorized use of a work from the collective's repertoire. Many users, for some strange reason, have also subscribed to this view, despite its extraordinary consequences. This is a second article in a series of two. The previous article showed that the “mandatory tariff” theory cannot, as a matter of statutory interpretation and in light of the case law, withstand scrutiny. This article shows that in addition, construing the Act in accordance with the “mandatory tariff” theory gives rise to numerous practical challenges, conceptual puzzles, procedural nightmares, and constitutional headaches, each of which should weigh the scales against it. In contrast, the “voluntary licence” theory avoids all these quandaries, and, in addition to being consistent with earlier case law, appears clear, simple, and coherent.

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Knopf, H. P. (2000). Copyright Collectivity in the Canadian Academic Community: An Alternative to the Status Quo? Intellectual Property Journal, 14(1/3), 109–139.

Macklem, L., & Trosow, S. (2020). Fair Dealing, Online Teaching and Technological Neutrality: Lessons from the COVID-19 Crisis. Intellectual Property Journal, 32(3), 215–247. https://search.proquest.com/openview/6e48cb8e218b32b001639ef4d21337f0/1?pq-origsite=gscholar&cbl=46743

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Tawfik, M. J. (2013). The Supreme Court of Canada and the Fair Dealing Trilogy: Elaborating a Doctrine of User Rights under Canadian Copyright Law Case Comment. Alberta Law Review, 51(1), 191–200. https://heinonline.org/HOL/P?h=hein.journals/alblr51&i=201

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Gervais, D. J. (with Canada Canadian Heritage). (2002). Collective management of copyright and neighbouring rights in Canada: an international perspective. Dept. of Canadian Heritage.

York University v. Canadian Copyright Licensing Agency (Access Copyright) - 2021 SCC 32 (July 30, 2021). https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/18972/index.do

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Barbeau, F. (2020). Rétractation du jugement. In JurisClasseur Québec. Procédure civile. I. LexisNexis. (Original work published 2015)

Mayrand, A. (with Mac Aodha, M., & Mayrand, A.). (2007). Dictionnaire de maximes et locutions latines utilisées en droit (4e éd. / mise à jour par Mairtin Mac Aodha). Éditions Yvon Blais.

Wong, A. S. P. (2020). Doctrine of Functus Officio: The Changing Face of Finality’s Old Guard. Canadian Bar Review, 98(3), 543–582. https://heinonline.org/HOL/P?h=hein.journals/canbarev98&i=533

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Canadian Broadcasting Corp. v. Manitoba - 2021 SCC 33 (September 24, 2021). https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/18994/index.do

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Fredman, S. (2006). Human Rights Transformed: Positive Duties and Positive Rights. Public Law, 498.

Roach, K., & Schneiderman, D. (2013). Freedom of Expression in Canada. Supreme Court Law Review, 2d, 61, 429.

Newman, D. (2019). Canada’s Notwithstanding Clause, Dialogue, and Constitutional Identities. In G. Sigalet, G. C. N. Webber, & R. Dixon (Eds.), Constitutional Dialogue (pp. 209–234). Cambridge University Press. https://doi.org/10.1017/9781108277938.009

Urbinati, N. (2014). Free Speech as the Citizen’s Right. In R. Post (Ed.), Citizens divided: campaign finance reform and the constitution (p. 125). Harvard University Press.

Dawood, Y. (2021). The Right to Vote and Freedom of Expression in Political Process Cases Under the Charter. Supreme Court Law Review, 2d, 100(1), 105. https://doi.org/10.60082/2563-8505.1414

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Kreimer, S. F. (1984). Allocational Sanctions: The Problem of Negative Rights in a Positive State. University of Pennsylvania Law Review, 132(6), 1293–1397. https://doi.org/10.2307/3311891

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Leclair, J. (2001). Canada’s Unfathomable Unwritten Constitutional Principles. Queen’s Law Journal, 27(2), 389–444. https://heinonline.org/HOL/P?h=hein.journals/queen27&i=401

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Oliver, P. (2019). “A Constitution Similar in Principle to That of the United Kingdom”: The Preamble, Constitutional Principles, and a Sustainable Jurisprudence. McGill Law Journal / Revue de Droit de McGill, 65(2), 207–267. https://doi.org/10.7202/1075516ar

In recent years, unwritten constitutional principles often find their place in Canadian constitutional law via their supposed foothold in the part of the preamble to the Constitution Act, 1867 that refers to “a Constitution similar in Principle to that of the United Kingdom”. Principles such as judicial independence, democracy, federalism, constitutionalism and the rule of law, and protection of minorities have been derived from the preamble. This article looks through over a hundred years of Supreme Court of Canada case law in order to determine what that preambular phrase has meant over time. It turns out that in the years immediately after 1867, it referred to what we now call political constitutionalism. A hundred or so years later, this same passage came to be associated with legal constitutionalism, though the Court has more recently backed away from the fullest implications of that approach. This article proposes a reading of the preamble and constitutional principles that is consistent with recent Supreme Court of Canada case law and defensible given current jurisprudential trends. That reading gives due regard to the traditional meaning of the rule of law all the while acknowledging that there are genuinely hard cases (particularly prevalent at the Supreme Court level) where neither rules nor principles provide clear answers. In those circumstances, respect for the rule of law requires as much wisdom and judgement as it does application of more prosaic legal skills. This article therefore recommends what is here referred to as a “sustainable jurisprudence” that offers an essential bridge between by now orthodox Dworkinian principle-based reasoning and contextual studies more commonly found in socio-legal, feminist, and other critical literature.

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Pal, M. (2019). The Unwritten Principle of Democracy. McGill Law Journal / Revue de Droit de McGill, 65(2), 269–303. https://doi.org/10.7202/1075517ar

This article considers the content of the unwritten principle of democracy and its potential relevance in Canadian constitutional interpretation. The unwritten principles of federalism, the rule of law and constitutionalism, democracy, and the protection of minorities set out by the Supreme Court of Canada in the Secession Reference have received extensive academic attention. Much yet remains unknown, however, about the democracy principle. This article argues that we should interpret the unwritten principle as embodying a “thin” or procedural account of democracy tied to meaningful participation, rather than a “thick” version imposing specific outcomes or broader obligations. I argue that whatever the weight of a “thick” account of democracy, a “thin” understanding is preferable for filling in the content of a constitutional principle that has legal force. The central critiques of the use of unwritten principles in constitutional interpretation are 1) that they lack legitimacy and 2) that they are incoherent in relation to one another. Operationalizing a thin version of democracy in constitutional interpretation responds better to the claims that the unwritten principles lack legitimacy or are incoherent. A thin account still permits the unwritten principle to carry out its functional role in constitutional interpretation, such as enabling courts to fill in gaps in the text or to engage in structural reasoning. The article considers the implications of this approach for referendums and municipal elections.

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